Rolene Norton v. Arkansas Department of Human Services

ca04-733

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ROLENE NORTON,

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES,

APPELLEE

CA04-733

MAY 18, 2005

APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT,

NO. JV-2002-50,

HON. KENNETH DAVID COKER, JR., JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Rolene Norton appeals from a judgment of the Johnson County Circuit Court that terminated her parental rights. On appeal, she contends (1) that the trial court lacked jurisdiction to terminate her parental rights and (2) that the trial court erred in finding that there was sufficient evidence to terminate her parental rights in this case. We do not find merit in either of these points, and we affirm.

Norton is the mother of S.N., born December 2, 2000; J.T., born July 26, 1995; and M.T., born July 1, 1988. The children were placed in the custody of the Arkansas Department of Human Services (DHS) on May 13, 2002, after a DHS social worker observed unsanitary conditions in Norton's home and the conditions did not improve.

Pursuant to an order entered on June 25, 2002, S.N. was adjudicated dependent/neglected, and Norton was ordered to participate in individual counseling. In a subsequent order entered on August 12, 2002, J.T. and M.T. were adjudicated dependent/neglected, and Norton was again ordered to participate in counseling; she was also directed to make reasonable efforts to maintain a safe home and to obtain and maintain suitable employment. On July 21, 2003, following a series of review hearings, DHS filed a petition to terminate Norton's parental rights.

A termination hearing was held on December 16, 2003. At the hearing, several witnesses testified on behalf of DHS. Bill Hefley, a children's therapist, testified that he was asked to do an assessment of M.T. due to the possibility of M.T. having sexual adjustment disorders. Hefley determined that M.T. needed additional counseling and "more structure as provided by therapeutic foster care." He also said that family counseling would be in order if M.T.'s family "was available to counsel with."

Doris Hudson, a licensed therapist, testified that she had also worked with M.T. to address his depression and behavorial problems. She said that Norton was offered the opportunity to participate in family therapy on a weekly basis, but that she had only attended about "two or three sessions." She characterized Norton's attendance at these sessions as "sporadic." Hudson also acknowledged that, during this time, Norton had been responsible for taking care of her sick father.

Brenda Baker, a licensed social worker, also testified at the hearing. She said that she had counseled Norton on a weekly basis since November 2002, except for a brief period during April and May 2003 when Norton's father died. Baker said that she had last counseled with Norton in October 2003 but had not heard from her since. Baker also said that she had discussed self-esteem, communication, depression, and other issues with Norton. According to Baker, these discussions took place mostly during in-home counseling sessions. When Baker was asked about the condition of Norton's house, she said that the house was quite messy at times, but that conditions improved when Norton moved to a new house, although Norton still failed to comply with the DHS case plan. Baker opined that Norton was not yet prepared to provide a home environment for her children because she was not able to follow the DHS case plan and to do the things that DHS had asked her to do.

Amy Douskurt, a case manager for therapeutic foster care, testified that J.T. and M.T. were in her program. She explained that both children lived in a therapeutic foster home where the parents were trained for the special needs that the children might have. She said that M.T. was "not doing very well" in his therapeutic foster home. She also said that J.T. had his "good days and bad days" and that he was "struggling with some aggression and a lot of anger." She testified that she felt like the children were "getting their needs met" through therapeutic foster care, and that Norton had never set up a "meeting per se" to discuss the children's behavioral issues.

Patty Nelson, another children's therapist, testified that she had been working with J.T. on some "anger issues" and "coping skills to deal with the anger and frustration." Nelson also said that she thought it would be difficult to parent both children in the same house because they had such diverse needs. She opined that M.T. did not need to be around younger children because of his "sexual issues," but said that it would be safe for J.T. to be placed in a home with small children.

Shawn Dell Patton, a former DHS social worker, also testified. Patton said that she had worked on the case from March 2002 to August 2003. She said that out of seventy-one unannounced home visits, Norton's house was suitable for the children on eleven occasions, and Norton was not home on sixteen occasions. According to Patton's testimony, when she first started visiting Norton's home in March 2002, there were dirty dishes all over the kitchen, the laundry pile was "as tall as [Patton] was," there was trash all over the floor, and there was a dumpster in the yard that was overflowing with trash. Patton said that she advised Norton to go to counseling and that DHS worked with Norton to provide assistance with housekeeping, but conditions did not improve. On May 13, 2002, the day the children were removed, Patton found S.N. asleep in a car parked next door, apparently because conditions in the house were unsafe.

Patton testified that, in June 2002, Norton did not have any electricity, water, or gas and that it took "quite a while" to get the utilities turned on again. Patton opined that Norton made "minimal progress" in July 2002 and that Norton's house was safe for children on August 20, 2002, but that it was not safe in September 2002. On October 11, 2002, Patton and some other case workers assisted Norton in cleaning the house, but they returned on October 12 to find that "the house was not clean." Norton apparently made "some progress" in November 2002; however, in December 2002, the ceiling fell through in Norton's living room and a skunk's odor entered the house. According to Patton, in December 2002, there were also clothes everywhere, dirty dishes in the kitchen, food on the floor, trash on the floor, and dirty laundry piled all over Norton's house. Patton testified that the landlord fixed the ceiling in January 2003.

Patton further testified that in January 2003, "the house was not clean." Patton said that in February 2003, Norton made "some progress" and worked at Hardee's for approximately a month. However, in March 2003, Patton observed that the washer, dryer, and refrigerator were in the backyard and that the laundry was piled up "really bad" because Norton did not have any money to go to the laundromat.

Patton said that during 2002, DHS had offered Norton homemaker services, visitation with the children, and transportation services. Patton also testified that DHS had given Norton cleaning supplies and had made a referral for counseling. In addition, Patton said that she had recommended public housing to Norton because of structural problems with the house that Norton lived in, but Norton had objected.

On April 4, 2003, Patton gave Norton a list of safety issues concerning Norton's house, including, among other things, the following: a washer and dryer in the backyard needed to be tied shut so that no child could climb into them; there were two piles of trash in the yard that needed to be burned or hauled off; there was trash all over the yard that needed to be picked up and disposed of properly; there was a refrigerator in the backyard that needed to be hauled off; there was a rotten wall behind the bathtub that needed to be replaced; and the floor in the bathroom needed to be completely finished so that it would be stable and safe. In addition, Patton said that she told Norton that the bathrooms and kitchen needed to be kept clean and that things needed to be organized so that two-year-old S.N. could not reach them. According to Patton, Norton had not completed this list when she was evicted from her home and moved into another house in June 2003. Patton said that problems with the new house included trash and a refrigerator in the backyard, junk on the porch, no covering on the crawl space, and no cover over the breaker box that was inside the front bedroom.

Patton testified that in July 2003, Norton had made "some progress" in the new home but that she still had problems with trash and the crawl spaces. Patton said that Norton had nailed the crawl spaces shut at one time, but Patton "just barely touched them and they fell off, so they needed to be locked" because she was afraid that two-year-old S.N. could get under the house. Patton testified that there were also some big piles of carpet on the outside of the house and that there was a stove in the backyard. Patton also said that about a week before she stopped working the case in August 2003, Norton's home was "fairly sanitary."

According to Patton, Norton had missed several "staffing meetings" to discuss the DHS case plan. In addition, Patton said that Norton's in-home visitation with the children, which sometimes had been supervised and other times was unsupervised, eventually stopped altogether because her house was unsafe; visits ultimately took place at the DHS office.

Lisa Smith, another DHS case worker, testified that she began working on the casein September 2003. On September 17, 2003, Smith found that Norton's new home was not suitable because there were cleaning supplies within the children's reach, there was trash left on the coffee table, the breaker box had not been secured, there were dirty dishes in the kitchen, and there was "quite a bit" of laundry in the laundry room. However, Smith also found that the carpet had been removed from the yard and that there was a board over the crawl space, although Smith said that she would not call this "secured." According to Smith, on September 17, 2003, there were no appliances in the yard; there was a burn barrel outside, but "not a great deal of debris." Smith said that she did not go back to the house after September 17 because Norton was unavailable.

Stephanie Thomas, an adoption specialist with DHS, testified that there were other parties interested in adopting the children. She opined that the likelihood of the children being adopted was high.

Kristen Shelton, a DHS case worker, testified that she had been involved in the case from late October 2003 to the time of the termination hearing. She said that she had seen Norton during weekly visits at the DHS office and that she had attempted home visits but had never found Norton at home. Shelton said that Norton was not at home the night before the termination hearing, although the parties had apparently agreed to meet then for a final home visit. She also said that Norton had attended visitation with the children regularly, although she had been late to some visits. According to Shelton, Norton was working at Wendy's at the time of the hearing, and Norton had not contacted DHS regarding requests to attend individual and family counseling. Shelton recommended that Norton's parental rights be terminated and the goal of the case be changed to adoption, because Norton could not maintain a stable and safe environment for her children or meet her children's needs.

Judith Jones, Norton's mother, also testified at the hearing. She said that she would be willing to adopt the children but that she felt like Norton was capable of taking care of the children. She said that Norton had made "great strides" and that she loved her children. On cross-examination, Jones acknowledged that in the year after Norton's children were removed from the home, Norton still had not achieved the State's objectives that Norton keep a safe and clean house, get a job, and go to counseling.

Norton then testified on her own behalf. She said that she had been working at Wendy's since June 2003 and that she lived in a two-bedroom house with wood floors, a living room, a bathroom, a hallway, a "big kitchen," and an enclosed back porch. She said that it was clean other than trash in the dumpsters. Furthermore, she testified that the stove had been removed from the yard and that the crawl space had been nailed shut. Norton also said, "I know I lived wrong and I did wrong and I've tried to make a difference. I've tried to do the best that I can do for my kids and for myself."

Norton explained that she could not allow the DHS caseworker to inspect her home the night before the hearing because she was "hurting" and that it was the last time that she would see her boys if she lost her parental rights following the hearing. She stated that she "couldn't do it mentally" and that she was too upset. Moreover, she said that caring for her sick father from January 2002 to April 2003 interfered with her ability to keep her house clean, because she was driving back and forth to Little Rock each weekday for his treatment. She said that she quit going to counseling because of conflicts with her work schedule, and that she eventually forgot to call and reschedule with her counselor. She admitted that she had not talked to M.T.'s counselor since the "last court date" and said that she had only recently found out that J.T. and S.N. were involved in counseling. She stated that part of the problem she had with participating in their counseling had to do with her financial problems and paying the costs of transportation, but that she had a more fuel-efficient vehicle now. She acknowledged, however, that DHS offered her free transportation with twenty-four-hours' notice.

Liz McClanahan, a court-appointed special advocate, stated that she had been working on the case since August 2003 and that she was concerned about Norton's mental instability and her housekeeping skills. Specifically, with respect to Norton's housekeeping, McClanahan said that Norton could "keep it together for a week or two and then just cannot do it." Furthermore, McClanahan said that Norton did not keep appointments with her therapist and that the children's behavioral problems would not improve if they were returned to their mother. She also opined that a "meaningful effort" had been made to fix the situation, but that the children's situation had made "little improvement" since they were removed from Norton's home and they needed stability as soon as possible.

Following the hearing, Norton's parental rights were terminated. In an order entered on January 9, 2004, the court found that the children had been out of the home since May 13, 2002, that each had been previously adjudicated dependent/neglected, and that there was clear and convincing evidence that it was in the best interest of the children to terminate Norton's parental rights. In addition, the order stated that other family members had expressed interest in adopting the children and that there were numerous families available to adopt each child.

In its order, the court also found that Norton had not been able to maintain a reasonably safe home and that her home was not suitable for children. The court noted that Norton had made patterns of progress, but that she could not maintain it. Furthermore, the court recognized that during DHS's last home visit on September 17, 2003, there were dirty dishes in the kitchen, there was excessive dirty laundry, there was trash on tables, there was an electrical breaker box which was not secured, there was a spray can of cleaning fluid within the children's reach, and the crawlspace was still uncovered. The court also noted that Norton had been unavailable since September 17, so no further inspections had occurred. Moreover, the court stated that DHS had made reasonable efforts to reunite the family, including providing individual and family counseling, therapeutic foster care, homemaker services, house cleaning services, supervised visitation, transportation for Norton, cleaning supplies, and information about public housing.

In terminating Norton's rights, the court recognized that the children had been out of Norton's home for twelve months and found that, despite a meaningful effort by the Arkansas Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions had not been remedied by Norton. Furthermore, the court found that other factors or issues had arisen subsequent to the filing of the original petition for dependency-neglect that demonstrated that the return of the children to Norton's custody would be contrary to children's health, safety, or welfare and that, despite the offer of appropriate family services, Norton had manifested the incapacity or indifference to remedy the subsequent issues of factors or rehabilitate the circumstances that prevented the return of her children to her custody. Specifically noting that "Ms. Norton's inability to provide a safe environment for her children and her lack of compliance with receiving and participating in individual and family counseling provides anything but a highly structured home for these children," the court terminated Norton's parental rights.

As her first point on appeal, Norton contends that the trial court lacked jurisdiction to terminate her parental rights because no petition to terminate was filed by DHS. However, DHS points out that a termination petition was filed on July 21, 2003, and DHS has filed a supplemental record containing the petition. Thus, Norton's argument that the trial court lacked jurisdiction in this case because no termination petition was filed is without merit.

Norton next contends that the trial court erred in finding that there was sufficient evidence to terminate her parental rights. She apparently asserts that the conditions of her home were significantly improved from the time that the children were removed in May 2002 until the final DHS home visit in September 2003, and that the problems existing in September 2003 were "not significant enough" to warrant the termination of her parental rights. Furthermore, she claims that other factors, including financial and emotional distress, contributed to her inability to care for her children at times but that she maintained a suitable home and employment at the time of the termination hearing.

Cases involving the termination of parental rights are reviewed de novo on appeal. Dinkins v. Arkansas Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). The Arkansas Supreme Court has recently discussed our standard of review in parental-rights-termination cases, as follows:

Arkansas Code Annotated section 9-27-341(b)(3) ... requires an order terminating parental rights be based upon clear and convincing evidence. Larscheid v. Arkansas Department of Human Services, 343 Ark. 580, 36 S.W.3d 308 (2001) (citing Baker v. Arkansas Dept. of Human Servs., 340 Ark. 408, 12 S.W.3d 200 (2000)). Our law is well settled that when the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the question that must be answered on appeal is whether the chancery court's finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Id. (citing J.T. v. Arkansas Dept. of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997); Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992)). Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of witnesses. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Gregg v. Arkansas Dep't of Human Servs., 58 Ark. App. 337, 952 S.W.2d 183 (1997).

See Rodriguez v. Arkansas Dep't of Human Servs., ___ Ark. ___, ___ S.W.3d ___ (December 16, 2004).

Arkansas Code Annotated section 9-27-341(a)(3) (Supp. 2003) sets forth the intent behind the law governing termination of parental rights:

The intent of this section is to provide permanency in a juvenile's life in all instances in which the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile's perspective.

In addition, Arkansas Code Annotated subsections 9-27-341(b)(3)(A)-(B) (Supp. 2003) provide that a court may enter an order terminating parental rights if it finds by clear and convincing evidence:

(A) That it is in the best interest of the juvenile, including consideration of the following factors:

(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and

(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, or putative parent or parents; and

(B) Of one (1) or more of the following grounds:

(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.

....

(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent return of the juvenile to the custody of the parent.

....

(c) For purposes of subdivision (b)(3)(B)(vii) of this section, the inability or incapacity to remedy or rehabilitate includes, but is not limited to, mental illness, emotional illness, or mental deficiencies.

Moreover, our supreme court has repeatedly held that evidence that a parent begins to make improvement as termination becomes more imminent will not outweigh other evidence demonstrating a failure to comply and to remedy the situation that caused the children to be removed in the first place. See Jones v. Arkansas Dep't of Human Servs., ___Ark. ___, ___ S.W.3d ___ (March 24, 2005) (citations omitted).

In this case, at the time of the termination hearing, the children had been out of Norton's home for over a year and a half. After the children were initially removed from the home, DHS provided extensive support services to Norton, including counseling, assistance with housekeeping, visitation with her children, and free transportation; however, Norton repeatedly failed to comply with the DHS case plan. Specifically, she attended family therapy sessions only sporadically and she failed to complete individual therapy despite repeated requests by DHS to do so. In addition, Norton's home was suitable for children on only eleven out of seventy-one occasions prior to the termination hearing, including the last home visit on September 17, 2003, and Norton was not home on sixteen occasions. Notably, Norton was not present for a DHS home visit on the night before termination hearing, despite the fact that she had agreed to be there.

Here, Norton claims that conditions had significantly improved in the months leading up to the time of the termination hearing. However, even considering her eleventh-hour attempt to remedy the situation, we conclude that the trial court's findings are not clearly erroneous. See generally Jones v. Arkansas Dep't of Human Servs., supra. Although Norton made "some progress" at times, she could not consistently maintain a suitable environment for her children. Looking at all the evidence in this case, we are not left with a definite and firm conviction that the trial judge made a mistake in terminating Norton's parental rights; thus, we affirm the trial court's decision.

Affirmed.

Pittman, C.J., and Gladwin, J., agree.